Self-employment by F-1 student on OPT

Background:

F-1 students are eligible for certain forms of work-authorization both prior to graduation and post-graduation. Under the post-graduate employment option, also called OPT, a student is limited to employment in an occupation that is related to his or her “course of study”. However, all employment does not have to be in a typical employer-employee relationship.

Company formation for self-employment:

Some enterprising students may want to branch out on their own, and self-employment can be a viable option. I have also covered the basics of company formation in other articles on this blog, so please refer to those articles as well in conjunction with the following.

What authority permits F-1 students on OPT to be self employed?

An F-1 student on post-completion OPT may also be self-employed. See, “Policy Guidance For Student and Exchange Visitor Program and Designated School Officials of SEVP-Certified Schools with F-1 Students Eligible for or Pursuing Post-Completion Optional Practical Training” (Policy Guidance 1004-03 – Update to Optional Practical Training; USICE, April 23, 2010), at page 18:

“Self-employed business owner. A student on OPT may start a business and be self-employed. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program.”

An F-1 student on post-completion STEM (the 17 month extension for Science, Technology, Engineering and Mathematics majors) can also continue with self-employment after the initial 12 month OPT period. See, id, at page 19:

“Self-employed business owner. A student on a 17-month extension can start a business and be self-employed. In this situation, the student must register his or her business with E-Verify and work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program.”

What does this mean?

In conjunction with proper business formation, securing a FEIN (Federal Employer Identification Number) and appropriate licenses, it is possible for any student on OPT to be self employed for 12 months, and subsequently, for STEM OPT students, to be self-employed for another 17 months! This extended period – two years and five months – is indeed valuable time for a student to carve out his or her niche in American business.

What if self-employment or third-party employment do not work out?

If a student is not able to create his or her sustained employment, find acceptable employment or wishes to continue with a course of study, the student can get admission to another degree program at a US university, update their I-20 status and commence full time student status once again. The student must make sure that at all times his or her I-20 is updated and accurate and that the SEVIS record has been updated by the school.

There are other options for students who are exceptional or extraordinary: they may directly apply to the USCIS for classification either as a “alien of extraordinary ability” or “alien of exceptional ability”. Others who obtain tenure track employment with a university may also seek classification as “outstanding professor or researcher”. Yet others who may have qualifying employment through a multi-national company may seek adjustment of status through the L-1A category as “multi-national managers or executives”. As stated above, details of all these categories are set forth in my website at blog.immigration-america.com.

Once the alien has obtained USCIS approval for classification as an “immigrant worker” and the priority date is current, the alien can then apply for “adjustment of status” or the “green card”.

How long can an F-1 student on OPT remain unemployed during the OPT period?

ICE (Immigration and Customs Enforcement) has placed a limit of a maximum of 90 days of unemployment during the first 12 months of OPT, with an additional 30 days of permissible unemployment during the 17-month STEM extension for qualified students. [See, 8 CFR § 214.2(f)(10)(ii)(E)]

Conclusion

For enterprising students, especially those with a bright idea for the “next big thing”, the traditional employment model may not be the way to proceed post-graduation. The self-employment option, if carefully set up and followed, can be a viable way for a student – especially a STEM graduate – to obtain upto 29 months (12 + 17) of employment-valid OPT to build their dream!

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About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.

This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.

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Immigration America

Law Offices of Farhad Sethna – Immigration & Business Law

Self-employment by F-1 student on OPT